LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

2d DCA - Zoning trumps Historic Ordinance - This Time

In City of Tampa v. City National Bank, the 2d DCA upheld the circuit court's opinion (on 2d tier cert) that the City's zoning ordinance, rather than an applicable design guideline for an historic district, governed the height of a proposed building.

The facts are pretty simple: zoning allows high rises, property is also subject to architectural review with standards that include "scale: height and width," a 20 story building is proposed (next to an 11 story building and across side street from 2 story house) and rejected by architectural review board based on height.

The entire issue comes down to whether the architectural board could reject the building on that basis, and an interpretation that the zoning code's provision that the district regs govern height unless provided explicitly elsewhere. Both courts found that the architectural review code would allow consideration of height only in relation to the scale of the building, rather than to allow it to limit height.

I've seen some commentary that this is a major pro-property rights case, but the opinion doesn't read that way. This is a statutory interpretation case: both the circuit court and the 2d DCA rejected the City's contention that the architectural review ordinance authorized a limit on height. The courts (and the building) were able to point out other historic or overlay ordinances in the city that specifically limited height, and the 2d DCA was clear that a legislated standard that applied in an overlay or similar fashion district-wide would be valid. So the City can prevent other big buildings in the area with a fairly simple change to the ordinances.

Moreover, the 2d DCA recited all the usual language about its limited role in 2d tier cert review, and the more interesting question is not answered: what would the court have done in this case if the circuit court had upheld the city's denial on cert instead of overturning it?

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